Citation Nr: 0419474
Decision Date: 07/19/04 Archive Date: 07/27/04
DOCKET NO. 98-04 765 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an initial rating in excess of 30 percent for
the service connected post-traumatic stress disorder (PTSD)
with bipolar affective disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jeffrey Pisaro, Counsel
INTRODUCTION
The veteran had active service during the Vietnam War Era.
This appeal arises from rating decisions of the St. Louis,
Missouri Regional Office (RO). By rating decision in July
1997, entitlement to service connection for PTSD was granted
and a 10 percent evaluation was assigned. By rating decision
in August 2002, the grant of service connection was expanded
to include bipolar affective disorder. A 30 percent rating
was assigned for the veteran's psychiatric disability,
effective from the date of claim on February 7, 1997.
In regard to the instant claim for a higher evaluation, the
United States Court of Appeals for Veterans Claims (Court)
has held that, unlike in claims for increased ratings,
"staged ratings" or separate ratings for separate periods
of time based on the facts found may be assigned following an
initial grant of service connection. Fenderson v. West, 12
Vet. App. 119 (1999). In this case, as the July 1997 rating
action was the initial grant of service connection, the Board
will continue to consider whether additional staged ratings
should be assigned for the veteran's service-connected
psychiatric disability. In this way, the Court's holding in
Fenderson will be complied with in the disposition of the
veteran's appeal.
In May 2004, the veteran submitted a claim for an audit and
an earlier effective date regarding his PTSD claim. Although
the RO responded by letter of the same month with regard to
the request for an audit, it is unclear whether the veteran
still wishes to pursue an effective date claim. Accordingly,
the RO should contact the veteran and determine whether he
wishes to pursue a claim for an earlier effective date.
On the June 2004 informal hearing presentation, the
representative raised the issue of a total disability rating
based on individual unemployability due to service connected
disability (TDIU). The representative posited that this
issue was on appeal before the Board. A review of the record
shows that a claim for TDIU benefits was denied by rating
action in June 2000. The veteran received written notice of
this denial by letter in July 2000. As the veteran did not
submit a notice of disagreement, this issue is not currently
before the Board. Accordingly, the RO should contact the
veteran and determine whether he wishes to pursue a claim for
TDIU benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. From the date of claim on February 7, 1997 to the present
time, the veteran's PTSD with bipolar affective disorder is
productive of incapacitating symptoms resulting in total
occupational and social impairment.
CONCLUSION OF LAW
The criteria for the assignment of a 100 percent rating for
the veteran's PTSD with bipolar affective disorder, effective
from the date of claim on February 7, 1997, have been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7,
4.126, Diagnostic Code 9411 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual background
The veteran filed an initial claim of entitlement to service
connection for PTSD and bipolar disorder on February 7, 1997.
For the purposes of this decision, the Board will generally
refer to the veteran's psychiatric disability as PTSD.
A January 1997 VA hospital report shows that the veteran had
been admitted to the intensive substance abuse program after
receiving a DUI on New Year's Eve. PTSD was diagnosed and
the veteran was scheduled for outpatient treatment service.
A January 1997 VA biopsychosocial assessment report shows
that the veteran had overdosed on about 80 pills. He also
recently had a DUI. He had been going through a divorce
proceeding.
On VA fee basis psychiatric examination in March 1997, it was
noted that the veteran was unemployed and that he had been
divorced 4 times. Following service, the veteran had been a
truck driver until 1994 when he stopped working due to
stress. During and after service in Vietnam, the veteran
developed a serious alcohol problem. He was not treated for
this until he was hospitalized at the Leavenworth VA medical
center in January 1997. He was placed on medication and he
received group therapy. The veteran reported that he had
been depressed and anxious for many years, but that he had
suppressed those feelings. He had nightmares and flashbacks,
occasional exaggerated startle reflex, he avoided violent
movies, and he was given Valium for depression. The
diagnosis was PTSD. It was thought that the veteran would
probably be able to return to work with the administration of
the proper medication.
A November 1999 statement from a VA treating physician shows
that the veteran had been undergoing treatment at the
Leavenworth psychiatry outpatient treatment service. He was
diagnosed with PTSD and bipolar affective disorder. The
veteran would have mood swings, was easily angered, and he
would become depressed, anxious and paranoid. Flashbacks and
nightmares with survival guilt and depression had been
consistent problems for the veteran. The veteran was unable
to make any stable relationships. He had gone through nearly
40 jobs only to be fired. He avoided people due to his panic
attacks and paranoia. Medications and treatment had helped
in a limited manner. It was opined that the veteran was
severely impaired psychiatrically rendering him unable to be
gainfully employed.
A June 2002 Vet Center report shows that the veteran lived
alone. Symptoms included nightmares, night sweats, sleep
disturbance, isolation, depression, survivor guilt,
heightened startle response, hypervigilance, avoidant
behavior, emotional detachment, anger, irritability and
anxiety. The veteran had consistently avoided emotional
issues. He described a feeling of numbness. He admitted to
feelings of guilt and sadness that had lead to problems with
social and industrial relationships. He was isolated from
others and he was emotionally detached. The veteran had
recently quit a job as he felt that he was not being treated
fairly or respectfully. The assessment was chronic PTSD.
On VA psychiatric examination in June 2002, the veteran
indicated that he would find himself thinking about Vietnam
most of the time. A Global Assessment of Functioning (GAF)
score of 50 was assigned. The examiner felt that the
diagnoses of PTSD and bipolar affective disorder were
somewhat related co-morbidities. The veteran met the
criteria for a diagnosis of PTSD. It appeared that his mood
changes, diagnosed as bipolar, could be attributed to his
chronic anxiety and stress.
A February 2004 Vet Center report shows that the veteran had
recently returned to PTSD group sessions. He identified
isolation, mood swings, intrusive thoughts and sleep problems
as his primary reasons for returning to the group. A GAF
score of 40 was assessed.
Analysis
Service connection is in effect for PTSD and bipolar
affective disorder, evaluated as 30 percent disabling since
the date of claim on February 7, 1997 under DC 9411 of VA's
Schedule for Rating Disabilities, 38 C.F.R. Part. 4. It is
the veteran's contention that his symptoms warrant the
assignment of a 100 percent rating from the date of the
original claim.
This claim arose following the assignment of an initial
disability rating. On an original claim, the veteran will
generally be presumed to be seeking the maximum benefit
allowed by law and regulation, and such a claim remains in
controversy where less than the maximum available benefit is
awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993).
In Fenderson v. West, 12 Vet App 119 (1999), the Court held
that the rule from Francisco v. Brown, 7 Vet. App. 55, 58
(1994) ("Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance."), is not applicable to the assignment of an
initial rating for a disability following an initial award of
service connection for that disability. Rather, at the time
of an initial rating, separate ratings can be assigned for
separate periods of time based on the facts found, a practice
known as "staged" ratings. As this case involves a rating
assigned in connection with the original grant of service
connection for PTSD, the Board will follow the mandates of
the Fenderson case in adjudicating this claim.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §
3.321(a) and Part 4. Separate diagnostic codes identify the
various disabilities. 38 C.F.R. § 4.1 requires that each
disability be viewed in relation to its history and that
there be emphasis upon the limitation of activity imposed by
the disabling condition. 38 C.F.R. § 4.2 requires that
medical reports be interpreted in light of the whole recorded
history, and that each disability must be considered from the
point of view of the veteran working or seeking work. 38
C.F.R. § 4.7 provides that, where there is a question as to
which of two disability evaluations shall be applied, the
higher evaluation is to be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating is to be assigned.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination.
When evaluating the level of disability from a mental
disorder, the rating agency will consider the extent of
social impairment, but shall not assign an evaluation solely
on the basis of social impairment. 38 C.F.R. § 4.126 (a), (b)
(2003).
The regulations pertaining to rating psychiatric disability
are set forth, in pertinent part, below:
General Rating Formula for Mental
Disorders:
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own name. 100
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective relationships.
70
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships. 50
38 C.F.R. § 4.130, Diagnostic Code 9411 (2003).
As an initial matter, the Board notes that the veteran is
service connected for PTSD and bipolar affective disorder.
The VA examiner in June 2002 indicated that PTSD and bipolar
affective disorder were somewhat related co-morbidities. The
examiner noted that symptoms such as mood changes, although
generally classified as being related to bipolar disorder,
could also be attributed to PTSD. It is clear, therefore,
that there is no basis in the record to disassociate symptoms
according to disability. Moreover, as the veteran is service
connected for both disorders, there is no valid reason to
attempt to do so. For purposes of judicial economy, the
Board will refer to the veteran's service connected
disability as PTSD.
During the pendency of this claim, the veteran's psychiatric
symptoms have included nightmares, flashbacks, survival
guilt, intrusive thoughts, depression, irritability, anger,
anxiety, hypervigilance, emotional detachment, mood swings,
isolation and sleep disturbance. The veteran has been unable
to establish and maintain stable relationships. The veteran
lives alone. He has been divorced four times. In fact, the
veteran reported avoiding people due to panic attacks and
paranoia. As a result, the veteran is isolated from others
and he is emotionally detached. Reports of examination show
the presence of chronic PTSD that severely impairs his social
adaptability.
Industrially, the record shows that the veteran has had
nearly 40 jobs since service due to his psychiatric
symptomatology. As an example, the veteran reportedly was
employed in early June 2002 yet, a late June 2002 Vet Center
report shows that the veteran had recently quit a job due
emotional problems associated with work. The veteran's
treating physician in November 1999 opined that the veteran
was unable to be gainfully employed due to psychiatric
symptoms. On VA psychiatric examination in June 2002, a GAF
score of 50 was assessed. A score of 50 denotes the
presence of serious symptoms or any serious impairment in
social or occupational functioning such as having no friends
or being unable to hold a job. The most recent report in
February 2004, from the Vet Center, includes a GAF score of
40 which represents major impairment in several areas such as
a depressed individual who avoids friends and is unable to
work. In short, the veteran's severe PTSD symptomatology has
continued despite the administration of ongoing individual
therapy and a course of medications.
Also of record are numerous VA mental health care records
that further corroborate the serious and persistent nature of
the veteran's PTSD. It is clear, therefore, that the veteran
suffers from severe social and industrial inadaptability due
to the effects of persistent severe PTSD symptoms.
Based on the frequency, severity and duration of psychiatric
symptoms, as reflected in the mental health record, the Board
finds that the veteran's PTSD symptoms more closely
approximate those for which a 100 percent evaluation is
warranted. Accordingly, upon review of the entire record,
the Board finds that the veteran's symptomatology is
productive of incapacitating symptoms resulting in total
occupational and social impairment. Therefore, after
reviewing the clinical record and resolving any remaining
reasonable doubt in the veteran's favor, a 100 percent
evaluation is warranted from the date of his claim on
February 7, 1997. As this determination encompasses the
entire period of time under adjudication, additional inquiry
under Fenderson is not necessary.
VCAA
The Board also acknowledges that the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)), applies to
the veteran's appeal. The Act imposes certain notification
requirements and clarifies VA's duty to assist claimants in
developing evidence pertinent to their claims.
The Board acknowledges that there may be some deficiencies in
this case as to whether VA has fully complied with the VCAA.
This raises a due process issue which was addressed by the
United States Court of Appeals for Veterans Claims (Court) in
Bernard v. Brown, 4 Vet. App. 384 (1993). Pursuant to
Bernard, the Board must consider whether addressing the
veteran's claim on the merits would cause prejudice to him.
As the benefit sought on appeal (entitlement to the highest
schedular rating) is being granted in full, the Board finds
no prejudice has resulted to the veteran's due process rights
by the Board's action in this matter.
ORDER
From February 7, 1997, entitlement to the assignment of a 100
percent evaluation for PTSD with bipolar affective disorder
is granted, subject to the applicable criteria pertaining to
the payment of monetary benefits.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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